Article 50 ruling: the EU referendum was only ever “advisory”

The high court's decision has offered Remainers a glimmer of hope, but safeguards were built into the original legislation to protect against Brexit.

By AC Grayling

After four months of Brexit-prompted gloom, Remainers see the ruling by the high court that the government can’t trigger Article 50 without a parliamentary vote as a glimmer of hope. They feel that if there is a debate in parliament on it, if the vote is free, and if MPs vote according to their beliefs about what is best for the United Kingdom, the madness of Brexit will be stopped.

The biggest “if” in that sequence is the third. It is public knowledge that a majority of members of the House of Commons, and an even larger majority in the House of Lords, favour continued membership of the European Union. Voting according to conviction would be a foregone conclusion.

But MPs live with a fetish: the fetish of the plurality in a ballot. This is not the same thing as adherence to democracy, a point it takes a moment or two to clarify — see the next paragraph. For even though MPs will be unmoved by repeated and persistent opinion polls showing 80 per cent support for physician-assisted dying in cases of terminal illness, or by public majorities for the return of capital punishment and against tax increases on beer and petrol, they will be sent running from their convictions by a small majority in an explicitly advisory referendum, and will feel that they must regard it as binding.

They forget two vital points. A referendum is not an election. Voters can periodically change their minds about the outcome of a previous vote. Those elected can be held to account for failure to deliver manifesto promises. Moreover those elected are charged with getting information, deliberating, and making decisions on behalf of their electors. That is important: they are not messenger boys and girls, not delegates, but representatives. The structures of representative democracy exist to provide a filter against mob rule moods and errors. In that respect MPs have the kind of responsibility that we are all pleased to think airline pilots feel for their passengers. In a case like the madness of Brexit, we want them to exercise it.

There should never have been a referendum. The internal party political reason why it was held was not meant to deliver a Leave outcome. So much is public knowledge too. But MPs need to remember that the contingency was guarded against. Briefing paper 07212 sent to MPs on 3 June 2015 before the debate in the House on the 2015 Referendum Bill made it perfectly clear that the referendum was “advisory” and “consultative” only and that neither the government nor parliament was bound by it (section 5). Which bit of this are MPs now acting as if they either did not read or did not understand?

The task for Remainers, if the High Court judgment is upheld on appeal, is to persuade MPs to act according to their convictions about the value of continued EU membership. Every sinew must be bent to that task. It is undoubtedly the case that a genuine majority of UK citizens (counting those disenfranchised in the referendum — 16-17 year olds, and expats — with daily increasing ranks of Bregreters) now wishes to remain. MPs will have the country on their side in doing what most of them know is right.

At the same time, an unappetising piece of information was provided by the referendum: attitudes to immigration have gone rancid in some quarters. That is a problem that needs addressing. But not by the government becoming rancid on immigration too; instead, by the civilising process of discussion, education, fact-checking, and demonstration that immigration is more often a good than not. This is the piece of advice we should take from the advisory referendum: this, and the further lesson that we need to explain the manifold and mighty advantages that EU membership gives us.